Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-26-1995

Bodine v. Warwick
Precedential or Non-Precedential:

Docket 94-7510




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ____________

               Nos. 94-7510 and 94-7621
                     ____________

                HARRY W. BODINE, JR.,
                 Appellant in 94-7510

                             v.

      JAMES WARWICK, Trooper; RICHARD FRUNZI,
      Trooper; PHILIP PITT, Trooper; STATE OF
      DELAWARE; CLIFFORD M. GRAVIET, Colonel;
            ARTHUR BLANSFIELD, Captain

      Trooper James Warwick; Trooper Richard
           Frunzi, Trooper Philip Pitt,
              Appellants in 94-7621

                 ____________________

  ON APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE DISTRICT OF DELAWARE
             (D.C. Civil No. 92-00727)
                ____________________

                Argued: June 8, 1995
Before:   BECKER, NYGAARD, and ALITO, Circuit Judges

          (Opinion Filed:    December 26, 1995)

                 ____________________

                            MARK B. FROST, ESQ. (Argued)
                            Pier 5 at Penn's Landing
                            Philadelphia, PA 19106

                            Attorney for Appellant/
                            Cross Appellee, Harry W. Bodine

                            GREGG E. WILSON, ESQ. (Argued)
                            JEFFREY M. TASCHER
                            Deputy Attorneys General
                            DEPARTMENT OF JUSTICE
                            820 N. French Street
                            Wilmington, DE 19801


                             1
                               Attorneys for Appellees/
                                Cross Appellants, Warwick, Frunzi
                               and Pitt
                        ____________________

                        OPINION OF THE COURT

                        ____________________


ALITO, Circuit Judge:


          Harry W. Bodine, Jr. filed this action, seeking, among

other things, to recover under 42 U.S.C. §1983 on claims that

certain Delaware State Troopers violated his Fourth Amendment

rights by illegally entering his house without first knocking and

requesting admission, by arresting him without probable cause,

and by using excessive force to effect his arrest.    At the close

of the evidence, the district court awarded judgment as a matter

of law in favor of Bodine on the issue of liability with respect

to the illegal entry claim.   The court later instructed the jury

that it need not determine whether the troopers used excessive

force in arresting Bodine because their unlawful entry rendered

any use of force unreasonable.   The jury then returned a verdict

in favor of the troopers on the unlawful arrest claim and, on the

remaining claims, awarded Bodine compensatory damages of $25,000,

an amount that was far below what he had sought.     Bodine

appealed, arguing that the small award of damages was against the

weight of the evidence.   The troopers cross-appealed, contending,

among other things, that the district court erred in granting

judgment as a matter of law in favor of Bodine on the illegal

entry claim and in framing its instructions regarding their


                                 2
liability for damages stemming from their conduct.   We hold that

judgment as a matter of law was improper in this case and that

the court's analysis of the issue of damages was incorrect.     We

therefore reverse and remand for further proceedings.



                               I.

          This case resulted from events that occurred in

December 1990.   Bodine had custody of his three sons, but their

mother, Helen Knight, had visitation rights every other Saturday.

On December 21, Bodine failed to appear at a hearing in Delaware

Family Court to show cause why he should not be held in contempt

for violating a prior court order regarding visitation.   Bodine

telephoned the court and said that "although he received notice

of the hearing . . . he had no intention of appearing . . . or

bringing the children with him. . . . "   The court issued an

order holding Bodine in contempt and fining him $100.    To make up

for visits that Knight had lost as a result of Bodine's conduct,

the court ordered that the children be turned over to her for

visitation at 8 a.m. at the Smyrna, Delaware, police station on

the next three Saturdays. The order further provided:
               Any police agency is authorized to
          assist Ms. Knight in securing Mr. Bodine's
          compliance with this order upon being
          presented with a certified copy thereof.
          Should police assistance again become
          necessary to secure the Court ordered
          visitation, Ms. Knight is specifically
          authorized to enter upon the property of Mr.
          Bodine in the company of a police officer to
          receive her children.

                                3
           On the next Saturday, December 29, Bodine did not bring

the children to the Smyrna police station at 8 a.m., as required

by the order, and Knight sought the assistance of the Delaware

State Police.   At some time between 8:10 a.m. and 8:20 a.m.,

Knight and three state troopers, James Warwick, Richard Frunzi,

and Philip Pitt, arrived at Bodine's house.       Bodine observed the

police cars approach the house.       He testified that he thought

they were there to enforce the visitation order, but he said that

he was surprised that they had come because he and Knight had

customarily given each other "a half-hour leeway" in turning over

the children.

           Trooper Warwick approached the house.      Warwick

testified that the Family Court order had previously been

circulated to the members of his troop, that "Harry Bodine and

the whole custody dispute" was a matter of "officer safety

concern" for "the entire troop," and that a memorandum concerning

the matter had been distributed to the troopers.       He also stated

that he was "cautious" as a result of two prior visits to the

Bodine residence, one for the purpose of executing a warrant for

Bodine's arrest and the other in connection with the custody

dispute.   On one of those occasions, Warwick said, Bodine had

told him "something to the effect that" if the police ever tried

to arrest him, "it [was] not going to happen" and he was "not

going to let [them] arrest [him]."       According to Warwick, Bodine

also said that if the police came to his house, they were "going

to pay."   As a result of these experiences, Warwick said that he

regarded Bodine as "unstable" and "very violent."


                                  4
           The troopers walked to the front door and knocked, but

Bodine told him to go to the back because a Christmas tree was

blocking the front door.   They then walked to the back door and

knocked again.   After Bodine opened the door, he and Warwick

spoke.   What happened from this point on was the subject of sharp

dispute.   According to Warwick, the following occurred.   Warwick

asked Bodine why the children had not been brought to the police

station by 8 a.m. as required by the court order, and Bodine

responded that he had until 8:30 a.m.     Bodine was raising his

voice, his eyes were twitching, and his lips were trembling.

These signs caused Warwick concern.    Warwick told Bodine to have

the children ready in five minutes, and Bodine said, "I will have

them ready when I feel like it."    Warwick was leaning forward at

the doorway, and he wanted to continue to talk to Bodine to calm

the situation, but Bodine slammed the door and tried to hit

Warwick in the face with it.   Warwick jumped back and heard

Bodine "fiddling around with the door" on the inside.   It sounded

to Warwick as if Bodine was trying to lock the door, so Warwick

grabbed the doorknob, pushed the door open, and entered the

house, followed by Troopers Pitt and Frunzi.

           Warwick advised Bodine that he was under arrest and

attempted to grab Bodine's right arm, but Bodine pulled away.

Warwick then grabbed Bodine's right arm and tried to handcuff

him, but Bodine pulled away again, and they wrestled to the

floor.   Pitt then grabbed Bodine's right arm and put his knee and

shin against Bodine's back in order to restrict his movements and




                                5
handcuff him.    The troopers handcuffed Bodine, assisted him to

his feet, and removed him from the house.

            Bodine, the woman with whom he was then living, and the

children who testified for him gave a very different account of

these events.    According to Bodine, when he opened the back door,

he immediately told Warwick that the children would be ready in

five minutes, and Warwick responded, "Okay, you have five

minutes."    After closing the door "firmly" because it was old and

swollen, Bodine walked away, but Warwick forcibly opened the

door, hitting Bodine in the back and knocking him off balance.

Warwick immediately grabbed Bodine's arms from behind and threw

him around the kitchen--from the table to the counter to the

floor--while Bodine offered no resistance.   Bodine began to

scream with pain, and he felt as if his arms were being broken.

            When Bodine was thrown to the floor, Pitt came down on

Bodine's back with his knee.    While Warwick held Bodine's arms,

Pitt placed his knee against the upper portion of Bodine's back

and pressed Bodine's head to the floor.    At this point, Bodine

heard his neck crack.    Bodine was then raised by the troopers,

handcuffed, and escorted to the police station.    He was

subsequently convicted in state court for the crimes of menacing

and resisting arrest.

            After his arrest, Bodine was diagnosed as having

serious back injuries, and he eventually underwent three

operations.    Bodine testified that he suffered great pain, and

the evidence showed that he was completely unable to work for

some time.    In addition, he introduced expert testimony that his


                                 6
injuries would permanently restrict the type of work that he was

able to do and the number of years that he would be able to work.

According to an economist who testified for Bodine, his total

lost wages during his lifetime were between $576,000 and

$1,000,000.   There was also evidence, however, that Bodine had

back problems before his arrest; that he did not report hearing

his neck "crack" during some of his initial medical examinations

after his arrest; and that his injuries were exacerbated by his

failure to follow the regimen that his physician prescribed.

           In December 1992, Bodine filed this action in district

court against Troopers Warwick, Pitt, and Frunzi, as well as

several other defendants who are no longer in the case.      In

February 1994, the case proceeded to trial on three theories of

liability: illegal entry, unlawful arrest, and excessive use of

force.   At the end of the testimony, Bodine moved for judgment as

a matter of law on liability with respect to two of these

theories, illegal entry and excessive force.   The court granted

this motion with respect to the illegal entry claim.   Moreover,

the court reasoned that, once the troopers entered the house

illegally, "any harm or damage that they inflict[ed] on the

plaintiff as a result of the illegal entry [was] per se

unreasonable . . . and [Bodine] was entitled to damages for

that."   3/8/94 Tr. at E-31.   The court added that it was

therefore unnecessary to submit the issue of excessive force to

the jury because the troopers were liable for all of the damages

that they caused even if they did not use excessive force.        

court also held that the troopers had waived the defense of

qualified immunity by not asserting it in their answer or at the

pretrial conference.   

            Before the case was submitted to the jury, Bodine

dismissed all claims against Trooper Frunzi for compensatory

damages, and the court awarded nominal damages of $1.00 against

all of the troopers on the illegal entry claim.     In instructing

the jury, the court said that the plaintiff had to prove that the

defendants' "conduct" was the proximate cause of the injuries he

sustained.   

    The court stated that it had already

determined that the troopers had entered the house illegally and

that the jury would therefore not be requested to decide that

question.    

  The court likewise told the jury that it

was not required to determine whether the troopers had used

excessive force once inside the house because it had "determined

as a matter of law that once the officers entered the premises,

no amount of force would have been reasonable."      

            After receiving these instructions and deliberating,

the jury found that the troopers had not arrested Bodine

unlawfully, that their actions were the proximate cause of injury

to him, and that he was entitled to compensatory damages of

$25,000.    Bodine moved for a new trial on the issue of damages,

but the court denied that motion.      Bodine then appealed, and the

troopers cross-appealed.

                        II.

            We will first discuss the issue of liability with

respect to Bodine's illegal entry claim.      As noted, the district


                                   8
court granted judgment as a matter of law in favor of Bodine on

this issue.    In order for us to sustain this ruling, the

evidence, viewed in the light most favorable to the non-moving

parties, must have been insufficient to permit a reasonable jury

to find in their favor.    See, e.g., Wittekamp v. Gulf & Western,

Inc., 

, 1141 & n.7 (3rd Cir.), cert. denied, 114 S.

Ct. 309 (1993); Billet v. CIGNA Corp., 

, 815 (3rd

Cir. 1991).    Under this standard, we hold that judgment as a

matter of law in favor of Bodine was improper.    In addition,

contrary to the troopers' argument, we hold that judgment as a

matter of law in their favor on this claim was likewise

unwarranted.    As we previously observed, there was sharply

conflicting evidence regarding the critical events in this case.

Depending on which version of the facts it believed, a reasonable

jury could have found for either side on the illegal entry claim.

Accordingly, that claim should have been sent to the jury.

          In considering the legality of the troopers' entry into

the Bodine residence, we begin with the terms of the order of the

Delaware Family Court, which is important both with respect to

what it does and does not authorize.    We read the order as giving

the troopers the authority to effect an involuntary transfer of

the children from Bodine to Knight for the purpose of

implementing Knight's visitation rights and to enter on Bodine's

property for this purpose, but we do not read the order as giving

the troopers the authority to enter the Bodine residence




                                 9
unannounced.0   In other words, we view the order as giving the

troopers authority similar for present purposes to that conveyed

by an ordinary search or arrest warrant.    Such a warrant would

authorize an executing officer to enter the property where the

search or seizure was to occur but would not confer "no knock"

authority unless the warrant so indicated.    An ordinary warrant

is not construed as conferring such authority, and we do not so

construe the court order involved here.    We simply do not see

anything in the order that supports that construction.   Moreover,

the troopers have not brought to our attention any authority for

the proposition that the family court judge had the authority

under state law to issue a "no knock" order, and even if he had

such authority, it is not apparent that he had a factual basis

for authorizing an unannounced entry at the time when the order

was issued.

          Since the family court order conferred authority

similar to that of an ordinary search or arrest warrant, the

troopers' authority to enter the Bodine residence in carrying out

the mandate of that order was similar to that of an officer

executing an ordinary warrant.   Last term, in Wilson v. Arkansas,

(1995), the Supreme Court addressed the question

whether there are circumstances in which the Fourth Amendment


0
 If we were called upon to decide whether the troopers have
qualified immunity for the entry, we would ask whether a
reasonable officer could have interpreted the order as granting
the authority to enter unannounced. But since the district court
held that the troopers had waived this defense and they have not
challenged that ruling on appeal, we do not address the issue of
qualified immunity.

                                 10
requires that officers knock and announce their presence before

entering a dwelling for the purpose of making an otherwise lawful

seizure or search.    After tracing the acceptance of the knock-

and-announce rule by common law courts, the Court held that

"[g]iven the longstanding common-law endorsement of the practice

of announcement, we have little doubt that the Framers of the

Fourth Amendment thought that the method of an officer's entry

into a dwelling [is] among the factors to be considered in

assessing the reasonableness of a search or seizure."     

   However, the Court added:
            This is not to say, of course, that every
            entry must be preceded by an announcement.
            The Fourth Amendment's flexible requirement
            of reasonableness should not be read to
            mandate a rigid rule of announcement that
            ignores countervailing law enforcement
            interests.

noted some of the circumstances under which the

common law did not require officers to knock and announce, and

among these were "circumstances presenting a threat of physical

violence."     

            The Supreme Court's decision in Wilson was anticipated

in large part by our decision in United States v. Nolan, 

(3rd Cir. 1983).    In that case, we held that there are

circumstances in which the Fourth Amendment requires officers to

knock and announce.    

  "We suggested that the

Fourth Amendment does not impose a specific rule governing forced

entries but rather imposes a general requirement of

reasonableness, informed by the goals of preventing undue



                                  11
invasion of privacy and destruction of private property."    United

States v. Stiver, 

, 302 (3rd Cir. 1993), cert. denied,

(1994).   Moreover, in United States v. Kane, 

, 978 (3rd Cir. 1981), in discussing the similar but not

necessarily identical knock-and-announce rule0 codified in 18

U.S.C. §31090, we held that "a police officer's reasonable belief

that announcement might place him or his associates in physical

peril constitutes [an] 'exigent circumstance' . . . that

justifies non-compliance with the announcement provisions of the

statute."   See also United States v. Jewell, 

, 23 (1st

Cir. 1995); United States v. Maxwell, 

, 1395 (8th

Cir.), cert. denied, 

(1994); United States v.

Buckley, 

, 558 (7th Cir. 1993), cert. denied, sub nom.

Herman v. United States, 

(1994).    In light of

these authorities, it seems clear that if the troopers in this

case had a reasonable belief that they were facing a "threat of

physical violence" when Bodine closed the door after speaking

with Warwick, the Fourth Amendment did not require them to knock

and announce their presence before entering the house.

            A reasonable jury, viewing the evidence in the light

most favorable to the troopers, could have found the following.

Warwick, the officer who opened the door and entered first, knew

that domestic relations cases are dangerous, that Bodine had

previously resisted allowing visitation by Knight to the point of


0
 See 

; 

.
0
 As we noted in 

, this statute applies to
federal officers. It is thus inapplicable here.


                                 12
standing in contempt, that Bodine had again failed to comply with

a court order for visitation that morning, that the visitation

dispute regarding Bodine's children was a matter of "officer

safety concern" for his entire troop, and that Bodine had

previously threatened that if the police came to his house again

they would have to "pay" and that he would not let them arrest

him.   When Bodine answered the back door, he was surly and

uncooperative.   In response to Warwick's demand that the children

be ready in five minutes, Bodine said that he would have them

ready "when he felt like it."   Bodine gave "nonverbal signs" of

considerable emotion: he raised his voice; his eyes twitched; and

his lips trembled.   He slammed the door and attempted to hit

Warwick with it in the face.    And after Bodine did this, Warwick

heard sounds that led him to suspect that Bodine was trying to

lock the door.   Based on these facts, a reasonable jury could

conclude that the officers were justified in believing that

Bodine was planning to use physical violence so as to avoid

complying with the visitation requirement.

          The troopers would have a stronger case if there was

evidence in the record that Bodine had access to firearms or

other lethal weapons in the house, but the absence of such

evidence is a matter for the trier of fact to weigh.   The parties

have not brought to our attention any evidence that the troopers

had a basis for being certain that there were no such weapons in

the house, and the average house contains implements, such as

knives and tools, that can be wielded with dangerous effect.

Thus, the evidence, if viewed in a light favorable to the


                                 13
troopers, was adequate to support a verdict in their favor on the

illegal entry claim.

           By contrast, if the jury believed Bodine's very

different version of the events, the troopers lacked any

reasonable basis for fearing physical violence from Bodine. Under

this version of the events, Bodine did not turn over the children

at 8 a.m. due to misunderstanding, offered to have them ready in

five minutes, and did not slam the door in Warwick's face, but

merely shut it "firmly" because it was swollen and difficult to

close.   Consequently, we hold that the issue of liability on the

illegal entry claim should have been submitted to the jury.

           In arguing that the district court erred in granting

judgment as a matter of law for Bodine, the troopers rely, not

only on the danger that they allegedly faced, but also on what

they characterize as several other "exceptions" to the knock-and-

announce rule: the "useless gesture,"0 fear-of-flight,0 and "hot

pursuit"0 exceptions.   In view of the possibility that Bodine's

illegal entry claim will be retried on remand, these arguments

warrant comment.   Under Wilson and Nolan, it does not appear to

be strictly correct to view the Fourth Amendment as containing a

knock-and-announce rule with certain fixed "exceptions." Instead,

those cases interpret the Fourth Amendment as containing a

flexible requirement that all searches and seizures be

0
  Citing Ker v. California, 

, 47 (1963)(Brennan, J.,
dissenting in part); 

; United States v.
Singleton, 

, 385-86 (3rd Cir. 1971).
0
  Citing 

(Brennan, J., dissenting); 

.
0
  Citing Santana v. United States, 

(1976).


                                 14
"reasonable" and regard an officer's failure to announce his or

her presence before entering a dwelling to carry out an otherwise

lawful search or seizure as a factor to consider in assessing

reasonableness.    See 

; 

-02.

             With this understanding in mind, we think that the

facts on which the troopers rely in advancing their "useless

gesture" argument -- Bodine's knowledge that the troopers had

already knocked twice and were outside his house -- are relevant

but not dispositive in determining whether their entry was

lawful.   Because Bodine had seen the troopers and knew that they

were outside, some of the dangers often associated with

unannounced, forcible entries -- for example, the danger that the

troopers would be mistaken for burglars0 -- were diminished.       On

the other hand, other dangers that might have been avoided by

knocking and announcing -- such as the danger that property would

be destroyed and that an occupant of the house would reflexively

react with violence0 -- were present.

             By contrast, the possibility that Bodine might have

fled finds no support in the evidence and is therefore not a

relevant factor to consider in judging the reasonableness of the

troopers' conduct.     Indeed, the troopers themselves testified

that they did not think that Bodine was going to flee.




0
  See Sabbath v. United States, 

, 589 (1968); 

.
0
  See 

.


                                  15
           In invoking the "hot pursuit" exception, the troopers

rely on United States v. Santana, 

(1976).   They note

that Bodine committed the offense of menacing when he slammed the

door and tried to hit Warwick, and they argue that Warwick was in

"hot pursuit" of Bodine to arrest him for this offense when he

entered the house.   Although Santana concerned a somewhat

different question from the one presented by this case, we think

that it has some (limited) relevance here.     Unlike Wilson,

Santana did not involve the authority of officers with a warrant

to enter a dwelling unannounced to execute the warrant.      Instead,

Santana involved the authority of officers to enter a dwelling to

make a warrantless arrest.    As the Supreme Court later held in

Payton v. New York, 

(1980), the Fourth Amendment

prohibits the police from making a warrantless and nonconsensual

entry into a suspect's house in order to make a routine felony

arrest, but officers may make a warrantless arrest in a public

place.   See United States v. Watson, 

(1976).     In

Santana, the police tried to make a warrantless drug arrest

supported by probable cause in a public place, but the suspect

retreated into her house, and the police pursued and arrested

her.   Concluding that this did not violate the Fourth Amendment,

the Supreme Court held that when officers attempt to make a

warrantless arrest in a public place but the suspect flees into a

dwelling the officers do not need a warrant to pursue the suspect

and carry out the arrest.    The Court noted the need for prompt

action to prevent the destruction of evidence (id. at 43), and
although the Court did not expressly refer to the authority of


                                 16
the police to enter the house without announcement, that

authority was certainly implicit in the court's holding.

            Although, as we noted, Santana concerned a somewhat

different question from that presented here, we have no doubt

that, when the police attempt to make an arrest with a warrant in

a public place and the suspect flees into his or her home and

closes the door, it is reasonable for the police to pursue the

suspect inside without stopping and announcing their presence and

intentions at the threshold.   This is so for several reasons.

Since the suspect knows what the police are attempting to do,

little purpose would be served by knocking and announcing.    In

addition, in many cases, as in Santana, there will be a danger

that evidence will be destroyed if there is delay, and there will

sometimes be a danger of flight or a threat of harm to the

officers as well.

            In this case, as previously noted, the troopers' fear

for their safety is potentially an important factor, but the risk

of flight is not supported by the evidence.   Nor is there any

suggestion that delay might have allowed Bodine to destroy

evidence.   As for the argument that an announcement was

unnecessary because Bodine must have known that Warwick was

trying to arrest him for menacing, while we cannot say that the

troopers should not be permitted to argue this theory to the jury

at a retrial if they wish to do so, it appears to have scant




                                 17
support in the record.0   Warwick did not try to arrest Bodine

before he slammed the door and retreated inside (if Bodine can be

said to have done so); indeed, it was not until Bodine slammed

the door and thus menaced Warwick that Warwick had grounds to

arrest him.   Thus, it is not at all clear that Bodine knew, prior

to Warwick's entry, that Warwick was seeking to arrest him for

menacing.

            In sum, we hold that the record in this case did not

support judgment as a matter of law for either side on the

illegal entry claim.    Only after the jury has resolved the

disputed factual issues regarding the relevant factors that we

have noted can it be determined whether the troopers' unannounced

entry was reasonable.



                                III.

            We now turn to Bodine's excessive force claim.   If this

claim is viewed separately from the illegal entry claim, it seems

clear that the jury should have been permitted to decide whether

the troopers' use of force was excessive.    Under the troopers'

version of the events, it was not.     According to the troopers,

they were simply trying to handcuff and arrest Bodine, but he

struggled to resist arrest.    By contrast, under Bodine's version,

the troopers' conduct -- throwing him around the kitchen and




0
 Judge Becker finds no support in the record for this theory and
no basis for concluding that Bodine knew prior to the officers'
entry that they were seeking to arrest him.


                                 18
causing his neck to "crack" while he offered no resistance--was

plainly excessive.

           The district court, however, did not allow the jury to

decide which account should be believed,     Instead, the court told

the jury that it did not need to decide this question because,

since the officers had entered the house illegally, any use of

force was unlawful, and the officers were liable for all of the

harm that ensued.    This analysis was wrong for two independent

reasons.

           First, as we explained in part II of this opinion, the

record did not permit judgment as a matter of law on the illegal

entry claim, and accordingly the court's conclusion that the

entry was illegal was premature.      Second, even if the entry was

unlawful, this would mean, under basic principles of tort law,

that the troopers would be liable for the harm "proximately" or

"legally" caused by their tortious conduct (i.e., by their

illegal entry).   See, e.g., Restatement (Second) of Torts §§ 431

and 871 cmt. l (1965 & 1979).    They would not, however,

necessarily be liable for all of the harm caused in the

"philosophic" or but-for sense by the illegal entry.     See, e.g.,
Restatement (Second) of Torts §§ 431 and cmt. a (1965).       Among

other things, they would not be liable for harm produced by a

"superseding cause."    See, e.g., Restatement (Second) of Torts

§§440-453 (1965).    And they certainly would not be liable for

harm that was caused by their non-tortious, as opposed to their




                                 19
tortious, "conduct," such as the use of reasonable force to

arrest Bodine.0

          A simple hypothetical will illustrate the importance of

these distinctions in a case such as this.    Suppose that three

police officers go to a suspect's house to execute an arrest

warrant and that they improperly enter without knocking and

announcing their presence.   Once inside, they encounter the

suspect, identify themselves, show him the warrant, and tell him

that they are placing him under arrest.   The suspect, however,

breaks away, shoots and kills two of the officers, and is

preparing to shoot the third officer when that officer disarms

the suspect and in the process injures him.   Is the third officer

necessarily liable for the harm caused to the suspect on the

theory that the illegal entry without knocking and announcing

rendered any subsequent use of force unlawful?   The obvious

answer is "no."   See George v. City of Long Branch, 

(9th Cir. 1992), cert. denied, 

(1993).    The

suspect's conduct would constitute a "superseding" cause, see

Restatement (Second) of Torts § 442 (1965), that would limit the

officer's liability.   See 

0
 In reaching the conclusion that the officers' illegal entry
rendered any later use of force unreasonable, the district court
relied on Schwab v. Wood, 

, 585 (D. Del. 1991),
which held that officers who detain a suspect without a
reasonable suspicion are liable (unless shielded by qualified
immunity) for harm caused by the use of any amount of force in
effectuating that detention. We find this holding questionable
for reasons similar to those discussed in text. Officers who
detain a suspect unlawfully should be liable for the harm
proximately caused by their tortious detention, but this will not
necessarily include all harm resulting from the otherwise
reasonable use of force to carry out the detention.


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          If at a retrial in this case the jury decides that the

troopers' entry was unlawful, it will be necessary to determine

how much of the injury suffered by Bodine was "proximately" or

"legally" caused by the illegal entry, and we express no view on

this question at this time.    We merely emphasize that this

determination must be made and that the illegal entry and

unlawful force claims must be kept separate.    Thus, if the

troopers are found to have entered the Bodine residence

illegally, they should be held liable for the harm proximately

caused by the illegal entry.    Similarly, if the troopers are

found to have used unlawful force, they should be held liable for

the harm proximately caused by this use of force.    The harm

proximately caused by these two torts may overlap, but the two

claims should not be conflated.




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                              IV.

          For these reasons, the judgment of the district court

is reversed, and the case is remanded for further proceedings.

Each party is to bear his own costs.




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